The intersection of criminal law and immigration law

Symposium: The Trials of Padilla

On August 5, 2010, Fernando Vasquez Gonzalez’s life changed. He learned the news as he sat in the custody of the Immigration and Customs Enforcement (ICE) at the Port Isabel Detention Center that is located along the southern tip of Texas on the United States/Mexico border. The State District Court judge had just vacated his conviction and granted his Padilla writ. Mr. Gonzalez’s conviction for Theft of Property in which the court imposed a sentence of two years confinement, probated for five years of community supervision, an aggravated felony for immigration purposes, was vacated and the State would now have to re-try his case. Mr. Gonzalez was no longer removable. This was the first Padilla writ filed and granted in Hidalgo County, and needless to say, the State was not happy. Unlike the previous occasion when Mr. Gonzalez received probation in exchange for a plea of guilty, the State this time wanted jail time.

It wasn’t easy getting to August 5. Mr. Gonzalez had already spent several months in ICE custody facing removal charges. He’s a 40-something disabled single man whose elderly parents came to retain my services because their son was locked up. Padilla v. Kentucky, 130 S. Ct. 1473 (2010), did not exist when I first visited with Mr. Gonzalez to discuss his immigration case and Mr. Gonzalez had very little relief available to him in immigration court as a result of the aggravated felony conviction. During the intake he recounted the events that led up to his conviction. Mr. Gonzalez explained to me that his counsel had not informed him of the immigration consequences and further explained to me why he feared for his life in Mexico. As we told the state court, these were life and death issues.

Our first hurdle was to file the Padilla writ quick enough in order to have the state court rule before the merits hearing in immigration court. Mr. Gonzalez had already submitted a withholding of removal application in immigration court so we filed the writ and were fortunate that the state court acted immediately. The state court judge signed a bench warrant ordering Mr. Gonzalez’s appearance before the court, and to ICE’s credit, they complied. The Hidalgo County Sheriff’s Department was allowed to transfer Mr. Gonzalez from ICE custody to state custody pending the outcome of the writ.

The hearings were contentious. Mr. Gonzalez’s defense attorney testified for the State against her former client. Mr. Gonzalez testified and told the Court that he would have gone to trial if he had been informed of the immigration consequences of a guilty plea to an aggravated felony. The State focused on Mr. Gonzalez’s credibility and the prejudice prong, but decided to not to make a retroactivity argument. After hearing all of the testimony, the judge granted Mr. Gonzalez’s writ and vacated the conviction. The Department of Homeland Security’s (DHS) trial attorney agreed to a motion to terminate proceedings based on the vacated case.

Despite this huge victory the battle wasn’t over. My client was now facing a criminal prosecution with not only the immigration consequences of a criminal conviction looming over his head, but a jail time recommendation by the state in the event of a conviction. The details of the case aren’t as important as the result. After several pre-trial hearings and much negotiating with District Attorney’s office, we reached an agreement and the case was dismissed.

The legal issues are obviously important to us as lawyers. Words like “prejudice,” “must,” “should,” “aggravated felony,” and “retroactive” make or break a case. But to Mr. Gonzalez, who now has a second chance at life in the United States, the word that mattered most was: “credible.” The state court judge believed that Mr. Gonzalez didn’t get informed of the consequences of his plea and interpreted the law in a way that gave Mr. Gonzalez the chance to make an informed decision about his criminal case. The way I believe the Supreme Court intended.

I have not changed Mr. Gonzalez’s name or story in any way. He is proud of his case and consents to the dissemination of those details that may not be part of the public record because he feels that this case saved his life.

On another recent Padilla victory the prosecutor is moving ahead full force in the re-prosecution of my client. The State is indicating years of jail time and the judge who seems to be regretful of vacating the conviction appears to agree. You can read about the details leading up to these events by reading “1 Client, 2 Wins: Successful Padilla Claims in Crim and Immigration Courts. The client is well informed of the consequences but is willing to fight it all the way for his right to stay in the United States. He has two United States citizen children depending on this case. This is a client that has told me that for all intents and purposes, “I believed I was American.”

I chose to write about my clients and their cases because it sheds light on the importance of Chaidez and retroactivity. These clients are willing to risk their freedom for the opportunity to stay in the United States. That’s how important this case is – and it is a matter of life and death for some people. Non-citizen defendants and citizen family members will be affected by the decision in Chaidez. These non-citizens who didn’t get a fair shot at their criminal case, because they were ill-informed, deserve the right to make a knowing, willful, and voluntary decision regarding their criminal case. They deserve their day in court – and if that day leads to negative immigration consequences, then so be it, but at least, the justice system worked.

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The information contained on these pages must not be considered legal advice and does not create an attorney-client relationship. This work by www.crImmigration.com is licensed under a Creative Commons Attribution 4.0 International License.